KATHAVAN SERVAI Vs. STATE OF T N

JUDGEMENT

(1.) These two appeals arise out of the judgment passed by the High Court of Madras on February 5, 1982 in Criminal Appeal No. 323 of 1979. By the aforesaid judgment the High Court set aside the order of acquittal passed by the learned Sessions Judge, Madurai, in Sessions Case No. 121 of 1977 and convicted appellants Nos. 1 to 3 under S. 302, I.P.C. in Appeal No. 518 of 1982 and also convicted the appellant Madhavan under S. 302, I.P.C. in Criminal Appeal No. 65 of 1983 and sentenced each of them to undergo imprisonment for life. The order of acquittal passed against accused No. 5, Irujayee, was. however, confirmed and the order of acquittal against the order accused persons under Ss. 147 and 148, I.P.C. was also affirmed by the High Court. It may be mentioned here that against the order of acquittal passed against all the accused persons by the learned Sessions Judge, the State of Tamil Nadu preferred Criminal Appeal No. 323 of 1979 before the High Court of Madras and the complainant, Kandaswamy, son of the deceased moved a Revision Petition being Criminal Revision Case No. 439 of 1978 before the High Court and both the said Criminal Appeal No. 323 of 1979 and Criminal Revision Case No. 439 of 1978 were disposed of by the common judgment passed by the High Court on February 5, 1982.

(2.) The prosecution case in short is that on August 28, 1977 at about 11.30 a.m., the appellants formed an unlawful assembly at a village Varichur and committed the offence of rioting and also caused the death of one Ramaswami Pillai. It was alleged that the accused Nos. 1 and 2, namely, the appellants Nos. 1 and 2 in Appeal No. 518 of 1982 stabbed the deceased, Ramaswami with knives and the accused No. 3, namely, appellant No. 3 in Appeal No. 518 of 1982 and the accused No. 4, namely, appellant in Criminal Appeal No. 69 of 1983 also caused injuries to the deceased by cutting him with billhooks. The accused No. 5 who was the wife of accused No. 1 was however, acquitted by the learned Sessions Judge from the charge of rioting and murder and such order of acquittal was affirmed by the High Court. The case of the prosecution was that the deceased, Ramaswami, was residing at Madurai and he had a flourishing trade in textiles in the name of 'Kandan Textiles'. The said Ramaswami had two wives and from first wife he had four sons and Kandaswami, complainant and P.W. 13, was the eldest. The second wife, Rajammal, was living at the village Varichur. Apart from the said business activities, Ramaswami had begun purchasing lands in a big way and by that process came in conflict with accused Nos. 1 and 3 because Ramaswami purchased the lands cultivated on lease by the said accused Nos. 1 and 3 and he dispossessed them. After purchasing the said lands from the owner thereof, namely, Rahman Bibi, Ramaswami took proceedings in Court and got the first accused evicted and took possession of leasehold lands held by accused No. 1 through Court on June 25, 1976 and since then he was having personal cultivation of the entire extent of 26 acres land purchased from Rahman Bibi. The suit for possession filed by accused No. 1 against Ramaswami in the sub-Court of Madurai was dismissed and the suit filed by Ramaswami for dispossession of the said land against the first accused was decreed. The appeal preferred by the first accused was also dismissed. The third accused was also cultivating two acres of land in Edayapatti village. The said land belonged to one Subbaraj and Ramaswami purchased the said land in the name of his son Kandaswami on August 27, 1974 and the lease in favour of the third accused in respect of the said land was terminated and Ramaswami was given possession of the vacant land. The third accused claimed protection under the tenancy law and moved various applications in Court but failed in his attempt and Ramaswami was said to have been personally cultivating the lands also at the time of occurrence. The accused Nos. 1 to 4 and their supporters tried to trespass on the said lands in village Edayapatti and harvest the crops and two cases were registered against the accused persons for trespass and dacoity at the instance of Ramaswami but the said accused persons were acquitted in Sessions Cases Nos. 166 and 167 of 1975 in the Court of Sessions Judge, Madurai. The third accused also lodged complaint against Ramaswami for removal of crops unauthorisedly but such case ended in acquittal. In view of these litigations and dispossession of the said accused persons, the accused Nos., 1 to 3 bore grudge against Ramaswami and became inimical towards him. As a matter of fact, Ramaswami also made application to the police authorities inter alia stating that he apprehended danger to his life at the hands of accused Nos. 1 to 3 and he should be given police protection. The police authorities enquired and warned the accused persons to keep peace.

(3.) The prosecution case is that in view of such bitter relation, the murderous attack on Ramaswami Pillai was made on August 28, 1977. Further case of the prosecution was that on the morning of August 28, 1977, Ramaswami took his breakfast and left for Varichur where the lands purchased from Rehman Bibi were situated. He went by his car No. MDA 5742 driven by his driver, P.W. 1. After reaching the land, Ramaswami inspected the land and the well which was being dug. His employees, P.W. 5 Thavasimuthu and Bose were at the land and they told him that the seedlings had been raised and fertilizer was required to prepare the paddy field. Ramaswami having learnt from Bose that the Co- operative Society at Varichur was open on that day and urea and manure were being distributed to the members, he directed P.W. 5 and Bose to go to his second wife's house at Varichur and bring a cart to the society to transport the urea bags and also informed them that in the meantime he would come by car to the Society. P.W. 5 and Bose thereafter left for Varichur by village road and Ramaswami proceeded by car to Varichur. The car was parked near the well on the southern side of Madurai Sivaganga Road. Ramaswami went to the Co- operative Society followed by P.W. 1. Though it was a Sunday, the Co-operative Society was kept open by P.W. 2, Thiru Sethuraman, the Supervisor-Secretary, as he wanted to clear off the arrears of work. For the said reason, P.W. 2 asked P.W. 3 Madurai-veeran, the attendant and P.W. 4, Karunakaran, the Salesman of the Society, to come and render service. P.W. 8, Guruswami Mudaliar, a villager and member of the Society, also went to the Society at about 10.30 a.m. on that day to purchase some manure for his lands at Varichur and in his presence Ramaswami came to the Society and also placed an order for some bags of urea. After purchasing the manure bags, P.W. 8 left, Ramaswami left the said urea bags at the Society's premises saying that his employees would bring a cart and remove the bags of urea. Ramaswami thereafter proceeded towards his car followed by his driver, P.W. 1. Just as Ramaswami was getting into the Madurai-Sivaganga Road, accused Nos. 1 and 2 came suddenly from the West and pushed down Ramaswami to the ground. The first accused then stabbed Ramaswami with a knife on his abdomen. The accused Nos. 3 and 4 also came running each armed with bill-hooks. The driver thereafter raised alarm. Hearing the alarm, P.Ws. Nos. 2 to 4, namely, the secretary-salesman and the attendant of the Co-operative Society also came running out of the premises to see what had happened. At the instance of the first accused the accused Nos. 3 and 4 cut Ramaswami with bill-hooks on his arms and legs indiscriminately. The second accused also stabbed Ramaswami with knife. The said murderous assault was witnessed by the driver, P.W. 1, and the said other witnesses, namely, P.Ws. 2 and 4. Such incident was also witnessed by P.W. 5 and Bose who by that time reached the well with cart. Thereafter, the accused persons left the said place. Ramaswami succumbed to the injuries at the place of occurrence. P.Ws. Nos. 2 to 4 thereafter returned to the Society and the driver went back to the house of Rajammal, second wife of Ramaswami, to inform her about the occurrence. Thereafter, he went to the house of village Munsiff but he was out of the town but the village Karnam, P.W. 9 was present there and recorded the statement given by the driver, P.W. 1 at about 12 noon, and he proceeded to the scene of occurrence and also saw the dead body of Ramaswami. He thereafter sent the statement and his own report to the Madurai Police Station.